Florida Workers’ Compensation Disability
The following is a section dealing exclusively with Florida’s Workers Compensation Law. If you are not insured under Florida’s Workers Compensation Law and are insured by a Federal or other State Workers Compensation Act, this website does not purport to give legal opinions on any law other than Florida’s Workers Compensation Law.
1. What is the purpose of Workers’ Compensation?
The purpose of Workers’ Compensation is to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful employment at a reasonable cost to the employer. It is supposed to be a self-executing system, but it is often not. It is also a system in which the laws are supposed to be construed not liberally in favor of either employee or employer, but it is often not. Note: nowhere does the law emphasize that it is there to actually help the worker have a better life.
2. What is an “accident” within the meaning of Florida’s Workers Compensation Law?
An “accident” means only an unexpected or unusual event or result that happens suddenly. However, only acceleration of a condition or death or acceleration or aggravation of a pre-existing condition that is reasonably attributable to the accident is comprehensible. Exposure to toxic substances, for example, does not constitute an “accident” unless there is clear and convincing evidence establishing that exposure to the specific substance involved.
3. Whom is covered by Florida’s Workers Compensation Act?
“Employees” are covered under Florida’s Workers Compensation Act, including people who work for wages or salaries in the state or for a Florida employer and officers of corporations who have not opted out of the system within narrowly-drawn parameters. It also includes sole proprietors, partners, and all persons being paid by a construction contractor or subcontractor unless otherwise exempted. It includes independent contractors, sole proprietors, employees, and paid agents.
4. What if I get injured and my boss doesn’t have Workers’ Compensation coverage?
Every employer who fails to secure the payment of compensation as provided by Florida’s Workers’ Compensation Act may not in any suit brought against him by an employee for damages defend the suit on the grounds that the injury was caused by the negligence of the fellow worker or employee or that the injured worker assumed the risk in his employment and/or was comparatively negligent. The Florida Workers’ Compensation Act insulates an employer against suit for monetary damages under most circumstances where the employer is covered by Workers’ Compensation insurance.
5. My doctor has told me that I will be at “maximum medical improvement” (or “MMI”) soon. What does that mean?
The date of the your maximum medical improvement, or MMI, means the date after which further recovery or lasting improvement to an injury or disease can no longer reasonably be anticipated based on reasonable medical probability. Your date of MMI has to include both physical and mental (if any) dates should there be a relationship to either or both to the industrial accident.
6. I have heard that my doctor says that my injury was not the major contributing cause of my problems. What is “major contributing cause” mean?
“Major contributing cause” is a cause that more so than any other cause has created the resulting physical condition that the employee suffers from. If an injury arises out of the course of employment and combines with a pre-existing condition or cause or prolonged disability or need for treatment, the employer is responsible to pay compensation or benefits required only to the extent that the injury arising out of course of employment remains more than 50% responsible for the injuries as compared to all other causes combined and thereafter remains the major contributing cause of the disability and need for treatment. “Major contributing cause” must be demonstrated by medical evidence only. In short, it is the single cause that contributes to the injury or disability more than all other causes combined.
7. When is compensation payable for my lost wages and medical bills?
Compensation is payable when a person is injured on the job or within certain limitations in going and coming. It also includes traffic accidents that occur while the Claimant is within the scope of his employment. Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee or by drugs and habituates or other stimulants not prescribed by a physician. The willful intentional act of an employee to injure/kill himself or herself or another is also not included as compensable.
8. What if I am injured in a motor vehicle accident while I’m on the job? What can I do?
Traveling employees are covered under the Florida Workers’ Compensation Act in most situations. An employee who is required to travel in connection with his/her employment who suffers an injury while in travel status is eligible for benefits under the Florida Workers Compensation Act if the injury arises out of course of employment while the employee was actively engaged in the duties of employment. The Florida Workers Compensation Act applies to travel necessarily incident to performance of the employee’s job responsibilities but does not include travel to and from work unless there are specific circumstances, like being paid while traveling or while en-route to and from a job site or while traveling in an employer-owned vehicle.
9. If I am in an accident while at work what do I do?
The first thing you need to do is to notify your employer of the accident. The law requires the employee to do this and for the employer to notify the Workers’ Compensation carrier with all due speed. Also do this in writing and ask to file a “Notice of Injury” and keep a copy for your records.
10. What if I am injured and I fail to advise my employer of the injury within 30 days after the initial manifestation of the injury?
You will lose your rights. Failure to advise the employer shall bar petition and/or payment of any benefits under the Florida Workers Compensation Act unless your employer or his/her agent had actual knowledge of the injury and the cause of the injury could not be identified without a medical opinion or the employee advised the employer within 30 days after obtaining a medical opinion that the injury rose out within the course of employment or the employer did not put the employees on notice of the requirements of the Workers’ Compensation section by appropriate posting of coverage. There are some exceptional circumstances which are beyond the scope of this question so consult with us or another attorney who does Workers’ Comp.
11. What if I report my injury to my boss, and he does not report the injury to the Workers’ Compensation carrier?
You must contact your Workers’ Comp carrier yourself. Your Workers’ Compensation carrier could be fined. It is against the law not to report the injury.
12. What if I’m in a motor vehicle accident? What insurance applies?
If you are in a motor vehicle accident involving your work, the first thing you must do as soon as your can is report the accident to your employer. Different laws apply to different vehicles; however, Florida’s Workers’ Compensation Act provides for the primary insurance for the accident and your recovery, lost wages and care. Many attorneys who advertise themselves as “Personal Injury Attorneys” will miss this or may intentionally avoid the Workers’ Comp issues because they do not understand them. We think this is wrong. It is important that if you’re injured the in motor vehicle accident that one elects to have medical treatment under Florida’s Workers Compensation Act since the amount of medical coverage is unlimited. Unlike the PIP/No Fault benefits, which max out at $10,000, your medical benefits for Workers’ Compensation are potentially unlimited for you as an individual. Moreover, if the accident involves the negligence of another person, if you treat under Florida’s Workers Compensation Act, you will not have to expend your PIP benefits which can be used to your own benefit in any settlement against the person who caused the accident since those PIP benefits can be used to pay off any Workers’ Compensation lien that may exist in your case or be used by you at a later date for lost wages and medical care. More importantly, should you be treated under Florida’s Workers’ Compensation Act and be the victim of a medical negligence as a consequence of your treatment by an authorized Workers’ Compensation treating physician, then your damages from that negligence (medical malpractice) is covered as well and as far as your lost wages and need for future medical care and treatment. If this happens under a letter of protection or by a doctor that’s treating you that is being paid by health insurance or PIP/No Fault benefits, you could be out of luck when it comes to getting additional medical care and treatment paid for by an insurer or the second party tort fees who caused the negligent or medical malpractice.
13. When does the Workers’ Compensation carrier have to pay me for my lost work?
According to the law, no compensation is allowed for the first 7 days of disability expect benefits provided in Chap 440.13. However, if the injury results in disability of more than 21 days, compensation shall be allowed from the commencement of the disability onward. Essentially, there is a 7 day elimination period that employee is self insured for until he/she is actually disabled for 21 days and then the 7 day elimination period is dropped and the injured employee paid for his/her lost wages owed during this time.
14. How are my medical fees paid?
Except for emergency care treatment, fees for medical services are payable only to a healthcare provider who is certified & authorized to render remedial treatment, care, and attendance by your Workers’ Compensation carrier under the Florida Workers Compensation Act. This is why it is necessary to contact your Workers’ Compensation carrier and get all treatment other than emergency care pre-authorized. Workers’ Compensation carriers pay for only authorized care and not for any unauthorized care other than emergency room visits.
15. What is a “Workers’ Compensation Managed Care Arrangement”?
A Workers’ Compensation Managed Care Arrangement is one that’s used by Workers’ Compensation carriers to administer their cases. If the managed care agency is not administering the case properly, one must file a complaint or grievance, meaning a written complaint which must be filed before an employee is able to file a petition for benefits. The managed care arrangement just adds another level of bureaucracy to the Workers’ Compensation system and is essentially a very frustrating means through which an injured worker has to grovel to get adequate medical care from a recalcitrant Workers’ Compensation carrier.
16. If I am injured, to what compensation am I entitled?
If, after you are at MMI and on account of your work related injury, you have the severity of injury and symptoms that cause a permanent disability which prevents you from ever going back to even sedentary work, you may be declared “permanently totally disabled.” This declaration will entitle you to 66% of the average weekly wage that you normally would have been earning had you not been injured. An injured employee is presumed not to be permanently and totally disabled unless the employee establishes that the employee is physically not capable of engaging in at least sedentary (sit-down) employment within a 50 mile radius of the employee’s residence. Permanent Total Disability also includes, among other things, severe paralysis and amputation of upper and lower extremities as well as brain injuries and closed-head conditions as well as total industrial blindness and third-degree burns on 25% or more of the body and 5% of the face. In these cases the employee is not presumed to be able to find sedentary work within a 50 mile radius. Permanent Total Disability (PTD) can be very difficult to get without the aid of a well-experienced attorney.
17. How long do permanent total disability benefits last?
Under the present Workers’ Compensation Act, entitlement to such benefits ends when the employee reaches age 75 unless the employee is not eligible for Social Security benefits.
18. What if I’m not permanently totally disabled, just temporarily disabled? To what benefits am I entitled?
Under that circumstance you may be entitled to Temporary Total Disability, which is 2/3 of your average weekly wage paid while you are convalescing or unable to work at all. This period lasts up to 104 weeks. After 104 weeks the employee is placed at statutory maximum medical improvement and those benefits end. We advise that our clients apply for Social Security benefits within the first year of disability or immediately after their first job-related surgery.
19. What if I am disabled for more than 104 weeks?
That’s a tough question. It may be that an injured employee who is undergoing surgery or rehabilitation to apply for Social Security benefits as soon as possible. The Social Security assistance takes about 2-3 years to have a claim processed and you may run out of Workers’ Compensation benefits during that period of time.
20. What if I am able to go back to work but I can’t work as much as I had due to my injury?
You may be eligible for Temporary Partial Disability (TPD), which is when an injured employee returns to work with restrictions resulting from the accident and is earning wages less than 80% of the pre-injury average. Compensation is to be paid equal to 80% of the difference between 80% of the employee’s average weekly wage and the salary wages or other remuneration the employee is able to earn post-injury as compared weekly. Weekly temporary partial disability benefits may not exceed an amount equal to 66 2/3% of the employee’s average weekly wage at the time of the accident.
21. Am I entitled to Permanent Impairment Benefits if I am not Totally Disabled?
An injured employee is entitled to Permanent Impairment Benefits but they don’t add up to very much. Once an employee has reached maximum medical improvement and has an impairment rating which is a whole body impairment rating, the Workers’ Compensation carrier is supposed to pay the employer Impairment Income Benefits for a period based on the impairment rating. The payments are separate and apart from Temporary Partial or Temporary and Permanent Total Disability. The ratings vary but the payments are based on the following:
- For each percentage point from 1-10%, 2 weeks of benefits are to be paid to the employee for each percentage point of impairment;
- For each percentage point from 11-15%, 3 weeks of benefits are paid for each percentage point of impairment;
- For each percentage point from 16%-20%, 4 weeks of benefits are to be paid for each percentage point of impairment;
- For each percentage point from 21% and higher, 6 weeks of benefits are to be paid.
Again, these benefits are in addition to TTD and PTD benefits.
22. Am I eligible for benefits under the Workers’ Compensation Act if I receive benefits under unemployment compensation?
Under Florida’s Workers’ Compensation Act, no compensation benefits are payable for any temporary total disability when an injured employee has received or is receiving unemployment compensation benefits.
23. What if I get into a benefit dispute with my Workers’ Compensation carrier? What do I do?
If it’s a managed care case, please refer to the managed care issues recited above. If it’s not a managed care case or you have completed the managed care grievance process, an injured employee may file a petition for benefits by certified mail, by electronic means with the Office of Judge of Compensation claims. This petition must meet special requirements of specificity and contain an allegation that all grievance procedures were exhausted and that a good-faith allegation that the Claimant made a good-faith effort to resolve the dispute. So make sure all of your disputes are well-documented with your Workers’ Compensation Carrier. Again, you also must a good-faith effort to resolve the dispute with the carrier before filing the petition. It’s advisable that this be done in writing and by certified mail as well.
24. If I file my own petition will I be liable for costs?
Costs and proceedings brought without reasonable ground can be taxed against the claimant. An unwary litigant may also be taxed a reasonable attorney’s fees by the judge if the proceeding is brought without legal grounds.
25. If I hire an attorney can I expect not to have the other side to pay my attorney’s fees?
Many attorneys take on Workers’ Compensation cases for various reasons. Normally an attorney will charge the statutory fee based on the settlement of your case. The statutory fee is 20% of the first $5,000 of the amount of the benefits secured, 15% of the next $5,000 of the amount of benefits secured, and 10% of the remaining benefits secured up to the first 10 years after the claim is filed, and 5% of benefits secured after 10 years. If a claimant and attorney agree to file a petition for benefits for a medical issue or a payment indemnity benefits, then if the attorney is successful, the Workers’ Compensation carrier would be responsible for the payment of a reasonable attorney’s fee to the claimant’s attorney and bear reasonable cost incurred by the other attorney and claimant in the prosecution of the claim. This was not the law for a number of years until it was finally decided by the Florida Supreme Court. For 4-5 years, attorneys who made their livings litigating cases against insurance companies were precluded from making a living that way because of the unconscionable changes that Florida legislators were encouraged to make by their benefactors, the Florida Workers’ Comp insurers. As a consequence the insurers, who were not controlled by bad faith statutes in the state of Florida concerning Workers’ Compensation matters, low-balled and squeezed insured employees into settling their cases for far less than the case was worth because the injured employee could not find attorneys to represent them in these sorts of cases. Now with the opinion of the Florida Supreme Court on the matter, private attorneys can be paid for winning against an employer or its Workers’ Compensation insurer, and the insurer must pay the attorneys’ fee. An attorney can also make a fee from the claimant if the case is settled, but that fee must be according to statute and approved by a Workers’ Compensation Judge.
26. If I am in debt and I assign my claim to a creditor is it a valid assignment?
Under Florida’s Workers Compensation Act no assignment, release or commutation of compensation or benefits due or payable under the Chapter except as provided by Chapter 440 shall be valid and shall be exempt from all claims of creditors and levy execution and attachments or other remedy or recovery or collection of a debt and this exemption may not be waived. Bottom line, if you’re on Workers’ Compensation your creditor can’t get at the payment until the injured employee actually does something with his or her check by way of deposit or alienating monies.
27. If I file a petition do I have to go to mediation?
Yes, mediation is mandatory. Mediation can be public or private. If the parties fail to come to an agreement at mediation then a pre-trial stipulation must be completed and filed with the court putting the court on notice that mediation has failed and the settlement has not occurred and all issues are ripe and ready to be heard by the court.
28. If there was an impasse at mediation when will my hearing be concluded?
Final hearing must be held and concluded within 90 days after mediation conference unless stipulated by the parties and agreed to by the judge.
29. If I think that I am permanently totally disabled can a Judge adjudicate me as such without the employer and Workers’ Compensation carrier being given the opportunity to assess me for the purpose of reemployment?
A judge of Compensation Claims cannot adjudicate your case until you’ve been evaluated for reemployment by the employer/carrier.
30. If I am involved in an automobile accident within the scope of my employment, what should I do and what laws govern?
We at the Law Offices of Mike Murburg have handled these types of cases for over twenty-five years. Report the accident as quickly as possible to your employer. This must be done preferably by telephone first and thereafter in writing if necessary. You’ll need to fill out a report of injury at your employer’s when you can, once you’re out of the hospital. You can treat under Florida’s Workers Compensation Act and see a number of physicians who are reputable under the Act. Your attorney may have knowledge about who is reputable and who is not. If your injury is severe and/or if you have a disagreement with one of your healthcare providers, you may have the opportunity to use your PIP insurance for another evaluation and have that evaluation and doctor’s testimony admissible under certain circumstances. If you have a permanent injury under the Florida Workers Compensation Act and the person that caused the injury has insurance you may want to hire a lawyer to handle both the Workers’ Compensation issue and the personal injury action. These sorts of actions are somewhat complicated and an attorney who does both will be an asset to you. This is so because the attorney will have to settle the case with the bodily injury carrier and settle your Workers’ Compensation lien held by your Workers’ Compensation carrier and/or health insurance carrier. One must be careful to use the available automobile insurance policy’s PIP/No Fault and medical payment benefits to pay off any Workers’ Compensation liens.
If you are injured in your own vehicle or your employer’s vehicle there may be an insured motorist benefits that are available to you as well. Under certain circumstances the Workers’ Compensation lien or health insurance lien will not apply to uninsured/underinsured benefits. It is best to check with an attorney to find out if in fact the lien applies. The same is true with any healthcare liens which may be legal or equitable in nature.
If you are totally disabled and it is permanent, then you may need to file for Social Security Disability benefits. If you will be receiving Medicare benefits, it is important that you speak with your attorney about any Workers’ Comp or Bodily Injury settlement in excess of $250,000.00. Moreover, depending on whether you’re entitled to Social Security Disability or Supplemental Security Income benefits under the Social Security Act, you may endanger your entitlement to Medicaid and/or Medicare by an improper or improperly weighted settlement or retention of proceeds in excess of certain amounts. Often these sorts of cases involve settlement with the “tortfeasor,” the person that caused the accident and the uninsured motorist carrier and thereafter a settlement in lump sum with the Workers’ Compensation carrier as the Claimant goes on to Social Security and qualifies for Medicare benefits. At the time of the settlement of the Workers’ Compensation, a qualified Medicare Set-aside account will probably have to be established so that you will continue to be entitled to Medicare benefits throughout dependency of your disability up and through the time of your full retirement age. Additionally, as to the UM carrier, caution must be taken so as to preserve the rights of your insurer and obtain their consent to settle.
31. Who can handle such a lawsuit or claims or a complicated settlement of an on-the-job accident or injury involving motor vehicles or product liability issues?
Different statutes of limitations apply to Workers’ Compensation claims, suits against negligent parties, and under PIP and uninsured motorist policies and for suits against different government entities. The Law Offices of Mike Murburg, PA have attorneys who have considerable experience in doing just these sorts of cases. Please refer to the attorney resumes on this website and select whichever attorney you believe is best to fit your needs in regards to this.
32. Should I settle my Workers’ Compensation case without using an attorney?
If you do your own dental work or do your own surgery, you probably still should hire an attorney. If you or he/she does not have regular experience in such matters you will not know what the true value of your case is or what you are giving up. Remember, the insurance company is not there to protect or look out for you. Its duty is to the insured, the employer and the company’s shareholders. You do not even come into the equation with the insurer, only to the extent that they can get you to settle cheap.